FAQ: Utah's "Show Me Your Papers" Law

HB 497 effectively turns Utah into a police state. Like the Arizona “show me your papers” law that inspired it, this law compels all people in the state of Utah, citizens and non-citizens alike, to carry identification documents on them at all times, just in case they are stopped by police officers and asked to prove their citizenship or immigration status. The law requires police to ask for and examine the identification documents of anyone they stop, detain or arrest. Depending on the level of alleged offense and identity-verification process, it either requires or authorizes the police to investigate the immigration status of that person. Even if someone who is stopped has one of the acceptable forms of identification, police officers can still reject it if they have “reasonable suspicion” that the documents are false. These “police state” tactics are more commonly associated with totalitarian regimes than with robust democracies.

Moreover, the law invites racial profiling. By borrowing and even expanding the undefined “reasonable suspicion” standard used in Arizona’s law as a basis to reject identification documents, the law effectively endorses a policy of harassment and profiling of those who look or sound “foreign.” The law also permits a person without the right kind of document to make a statement attesting to U.S. citizenship, but the law permits the police officer to discredit that attestation if the officer has “reasonable suspicion” that it is false. Under Utah’s scheme, an officer has broad discretion whether to require additional proof of immigration status. And, where traffic stops are concerned, the law allows police to detain not just the driver but also all the passengers in order to investigate their immigration status; again, all that is necessary is “reasonable suspicion” to believe a passenger is undocumented. These provisions put police officers in the position of relying on stereotypes and characteristics such as race, ethnicity, or accent in deciding whom to stop and investigate.

Ultimately, the Utah law undermines public safety and makes everyone less safe by diminishing trust in law enforcement by immigrants, Latinos, and others presumed to be “foreign.” Many immigrants will not come forward with vital information about crimes for fear that they or their family members will be subject to detention and investigation. Everyone’s safety, including citizens’, is put in jeopardy when victims and witnesses don’t feel safe coming forward with critical information about crimes committed against them, their families, or members of the larger community. Police depend on the cooperation and trust of these communities to ensure public safety. Salt Lake City Chief Chris Burbank has joined other law enforcement leaders in speaking out against HB 497 for these and other reasons.

What is the ACLU doing about the law?

The ACLU and the National Immigration Law Center (NILC) have filed a lawsuit in federal court to stop HB 497 from taking effect. The lawsuit charges that the law violates numerous provisions of the U.S. Constitution, including the right to be free from unreasonable stops and seizures at the hands of police. By interfering with the federal government’s authority to regulate and enforce immigration laws, it also violates the Supremacy Clause of the Constitution.

This bill was signed into law on March 15, 2011 by Utah Governor Gary Herbert. It is scheduled to go into effect on May 10, 2011.

How does the law cause racial profiling?

By telling police officers to investigate the citizenship or immigration status of anyone they stop when they have “reasonable suspicion” to second-guess their statements or identification documents, the law invites police officers to rely on stereotypes when determining who is and who is not in the country lawfully. Police officers are put in the position of relying on race, ethnicity, or accent to decide whose status to investigate. On what other conceivable basis could an officer form “suspicion” that a person is in the country unlawfully other than based on how he or she looks or sounds?

Language in HB 497 prohibiting an officer from relying on race, color, or national origin is a fig leaf, designed to cover the fact that, apart from appearance, it’s hard to imagine any way a police officer could suspect that someone is not in the country legally. The same language was added to the Arizona law in a symbolic attempt to address public outrage over racial profiling. Relying on a person’s appearance is not “reasonable” and is not constitutional.

Like the Arizona law that inspired it, this law invites racial profiling at two junctures. First, law enforcement might find a reason to stop people for minor infractions based on the way they look, and then demand to see their papers. Or law enforcement may stop them for an unbiased reason and then, based on appearance or accent, demand their papers and decide to subject them to a lengthy investigation of their immigration status. Either way, racial profiling undermines fundamental American values of fairness and equality for all people. Americans come from every background and every corner of the earth, and no one should be subject to discriminatory or unequal treatment by law enforcement because of their race, ethnicity, or national origin.

Moreover, recent studies have shown that, when local law enforcement agencies are involved in immigration enforcement, it results in a race-based increase in the number of stops of Latinos for low-level, non-violent offenses. Similar policies have led to dragnets of Latino neighborhoods, discriminatory traffic checkpoints, and targeting of immigrant populations—all in an ill-disguised effort to detain them or get more people who look or sound “foreign” booked into jail so that their status can be checked.

As many top law enforcement officials, including Salt Lake City’s own police chief Chris Burbank, acknowledge, the law will significantly harm the public trust on which law enforcement necessarily relies in order to protect the people of Utah. It will also alienate police officers from the communities they serve. The law will compel police officers to divert scarce resources away from solving serious crimes and toward investigating false threats. The criminal justice system is compromised when crime victims are unwilling to report crimes and witnesses are afraid to cooperate out of fear that they will be detained or targeted. Local police will be put in the difficult position of having to rely on biased presumptions—and racial profiling—when asking people who look or sound foreign to confirm their citizenship or immigration status.

How does this law interrelate with other bills passed by Utah this year that seek to regulate the presence and employment of immigrants in the state?

In March of this year, the Utah Legislature enacted a package of four bills—HB 497, HB 116, HB 466 and HB 469—that were designed to regulate the presence and employment of immigrants in the state. HB 497, as explained above, creates a “police state” and invites racial profiling by imposing responsibilities on local police officers to demand identification documents from people they stop, and detain people to verify their immigration status under specified circumstances. HB 116 essentially seeks to establish a state guest worker program, separate and apart from federal programs regulating the employment of immigrants in the United States. HB 466 creates a Utah state commission on migrant workers that is to propose ways in which Utah can confer immigration status on foreign workers. Lastly, HB 469 seeks to establish a way for citizens of Utah to sponsor individuals outside the United States to live and work in Utah, again outside the parameters of federal immigration law. All were signed into law by the Governor.

Of this package of bills, only the “show me your papers” bill, HB 497, is slated to take effect imminently (on May 10, 2011); even if it were possible for the State of Utah to implement HB 116, HB 466 or HB 469 without the authorization of the federal government—which it is not—those bills are not scheduled to take effect until 2013. Although all four pieces of legislation were touted by the Governor and other elected officials as a “package,” implementation of HB 497 is not contingent in any way on the other three bills. HB 497 takes effect without regard to the availability of the illusory and constitutionally suspect state work permits or state-based immigration sponsorship contemplated by HB 116 and HB 469.

In essence, although it enacted a package of four different bills and promoted them as a “kinder, gentler” alternative to Arizona’s SB 1070, Utah has established a harsh enforcement-only, “papers, please” approach to immigration that is very much modeled after Arizona’s unconstitutional law.

Why doesn’t this law live up to the ideals of “The Utah Compact”?

The Utah Compact is a well-intentioned statement of five fundamental principles designed to promote a civil policy debate over immigration in Utah. The Compact was proposed following the passage of Arizona’s racial profiling law last year. It brought together community leaders and individuals reflecting a broad set of backgrounds and experiences, including business, law enforcement, faith, and civil rights, among others.

Some politicians have suggested that the package of bills passed in Utah this year represents a realization of the Compact. In reality, however, HB 497 and the package of bills passed along with it fall short of the Compact’s lofty ideals.

For starters, the very first sentence of the Compact states plainly: “Immigration is a federal policy issue between the U.S. government and other countries—not Utah and other countries.” It is difficult to understand how this touchstone can be squared with the intrusive immigration regulation and enforcement scheme adopted by the Utah legislature. Indeed, if every state took Utah’s approach, it would leave us with an unworkable patchwork of 50 different immigration laws around the country.

The Compact also supports keeping families strong and united: “Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.” But HB 497 does nothing to support families; instead, it expressly authorizes policies that will have the effect of separating undocumented individuals from family members who are lawfully present in the United States, and that will drive wedges between family members. One of the undocumented plaintiffs in this litigation lives in constant fear that she will be stopped by law enforcement and separated from her children, who are citizens, even though the federal government dismissed her removal action years ago. Another plaintiff, a man in his early 20s, will no longer drive his mother to run errands, because he fears being racially profiled and asked to produce identification papers, not just for him but also for his mother. HB 497 thus stands in direct opposition to the Compact principles of opposing “policies that unnecessarily separate families” and supporting policies that promote “the health, education and well-being of all Utah children.”

Finally, on the role of local police in federal immigration enforcement, the Compact could not be more clear: “We respect the rule of law and support law enforcement’s professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.” Yet HB 497 invites, and indeed mandates, local police officers to play an expansive, unconstitutional role in the enforcement of civil immigration laws, diverting them from their principal duty of serving and protecting the public.

What is the difference between this law and the federal law?

Utah’s mandate that state and local police officers demand the identity documents of anyone they stop, along with the broad discretion to investigate and detain people in order to verify their citizenship or immigration status, go well beyond what is permitted or even contemplated by federal immigration law.

Utah’s HB 497 oversteps the limits of a state’s authority to engage in the enforcement of civil immigration laws, in violation of the Constitution’s Supremacy Clause and the Fourth Amendment. States are not constitutionally permitted to create their own mandates on state and local police for the enforcement of federal immigration laws outside the authorization and supervision of the federal government. The alternative would be a patchwork of 50 different immigration-enforcement systems in this country, which would seriously undermine the ability of the federal government to regulate and enforce the nation’s immigration laws.

By imposing its own immigration-enforcement obligations on state and local police officers, Utah is essentially turning its officers into state-directed immigration agents. This interferes with the federal government’s authority to establish its own priorities and strategies to protect national security, ensure public safety, and enforce the immigration laws. HB 497 also imposes burdens on the federal government by requiring Utah police officers to inundate the federal immigration agency with tens of thousands of requests for immigration status verification during traffic stops. This diverts ICE from the work it has prioritized – removing non-citizens who have been convicted of crimes.

HB 497 also departs from federal law by authorizing state and local police officers to make warrantless arrests of people based on broad presumptions about their deportability from the United States for civil immigration violations. Even federal immigration agents do not have such broad authority to conduct warrantless arrests away from the border or international points of entry. See 8 U.S.C. § 1357 (a)(2). The Utah law also impermissibly seeks to expand the limited circumstances in which federal law expressly allows state and local officers to arrest immigrants. See 8 U.S.C. § 1252c.

For these and other reasons, the federal district court blocked similar provisions in Arizona’s SB 1070, on which HB 497 was modeled, from taking effect. A panel of the federal court of appeals affirmed that decision.

How is this law like Arizona’s SB 1070?

Although the language of Utah’s HB 497 is not identical to SB 1070, its impact on average residents of the state is the same. Both laws compel all people, citizens and non-citizens alike, to carry specified identification documents on them at all times, or else risk prolonged investigation into their citizenship and immigration status if stopped by police. Utah’s law goes even beyond Arizona’s in that it: (1) mandates all police officers to inspect the identification documents of all people they stop, detain, or arrest (Arizona’s law limits this inspection to those whom police officers have “reasonable suspicion” to believe are in the country unlawfully); and (2) permits police officers to reject identification documents or statements about citizenship based only on some “reasonable suspicion” that the documents or statements are false.

The “reasonable suspicion” standard in HB 497 is drawn from the much-criticized use of that phrase in SB 1070. In both laws, it is an open invitation for racial profiling based on someone’s appearance or accent. As discussed above, how else is a police officer on the street, untrained in the complexities of federal immigration law, supposed to form “suspicion” about who is and who is not in the country lawfully? Police officers will be put in the position of relying on someone’s race, ethnicity, or accent. Latinos, Asian Americans, and others presumed to be “foreign” will bear the brunt of these unconstitutional assumptions.

Both laws also give state and local police the authority to arrest people without a warrant for presumed violations of civil immigration laws. Even federal immigration agents do not have this type of broad warrantless arrest authority.

The Utah legislature experimented with the language of HB 497 in an effort to distinguish its provisions from those in SB 1070. Language changes alone are not enough to cure the law of its constitutional defects.